Trenched Euro release struggles continue, lawyer explains background

The trademark holder of Trench plans to keep on fighting to protect the name, which has prevented Microsoft and Double Fine's XBLA title, Trenched, from being released in "select" European territories. The legal wrestling involves Trench, a board game (pictured) that's being turned into a video game. Trench completed its trademark filing in 2009 for Europe and 2010 for the United States, almost a year before Trenched applied in May 2011.

"Because the application is barely 2 months old, the USPTO hasn't issued any actions on the Trenched filing. More than likely, the Trenched mark won't grant without some resolution to the Trench mark issue in the US," Law of the Game on Joystiq columnist -- and actual lawyer -- Mark Methenitis explains.

"Here's where this gets a little tricky. The Trench mark is filed as a 1(b) mark, which is an 'intent to use.' That is, they plan to use the mark, but aren't using it yet. From the notice of allowance (issued March 15 2011), they have six months to use the mark, request an extension for six more months. The maximum time they have to get a product to market is 3 years. So they only have until March 15, 2014, at the latest. But if they miss a response deadline, the application is abandoned, and then they don't have grounds from that application to stop the Trenched application."

Asked why Trenched doesn't just change its name for Europe, Methenitis figures that too much has been spent on marketing, or that someone didn't do their due diligence on the trademark checking and doesn't want to back down.

"It is a weird situation, though. Microsoft is usually really on top of trademark issues well in advance," Methenitis said. "Or they just think the can succeed in some jurisdictions and not others."

Microsoft, which could not provide a list of impacted European countries, informed us in a statement: "We don't have an update on the distribution of Trenched in Europe yet. ... We're working to resolve the matter as soon as possible and will keep you posted."